Att'y Grievance Comm'n of Md. v. Whitted

319 A.3d 1116

487 Md. 501

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Stephen E. WHITTED

AG No. 47, Sept. Term, 2021

Supreme Court of Maryland.

August 1, 2024

Circuit Court for Montgomery County, Case No.: C-15-CV-21-000551, Margaret M. Schweitzer, Judge.

Argued by Leonard H. Addison, IV, Asst. Bar Counsel (Thomas M. DeGonia, II, Bar Counsel, Attorney Grievance Commission of Maryland, Annapolis, MD), for Petitioner.

Argued by Stephen E. Whitted (Silver Spring, MD), for Respondent.

Submitted to: Fader, C.J., Watts, Booth, Biran, Gould, Eaves, Michele D. Hotten (Senior Justice, Specially Assigned), JJ.

Gould, J.

On December 6, 2021, under Maryland Rule 19-721, the Attorney Grievance Commission of Maryland (the "Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (the "Petition") against Respondent Ste- phen E. Whitted. The Commission charged Mr. Whitted with violations of the Maryland Attorneys’ Rules of Professional Conduct ("MARPC"), the Georgia Rules of Professional Conduct ("GRPC"), and the Washington Rules of Professional Conduct ("WRPC"). Mr. Whitted was charged with violating MARPC 3.1 (Meritorious Claims and Contentions) (Rule 19-303.1) and 8.4 (Misconduct) (Rule 19-308.4); GRPC 3.1 (Meritorious Claims and Contentions), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct); and WRPC 3.1 (Meritorious Claims and Contentions), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct). Ultimately, at different stages in these proceedings, the Commission withdrew all but the charges alleging violations of WRPC 3.1 (Meritorious Claims and Contentions) and 8.4 (Misconduct).

The hearing judge assigned to this matter held an evidentiary hearing from February 12 to 14, 2024.¹ The Commission presented its case with three witnesses, including Mr. Whitted, and 25 exhibits. Mr. Whitted also testified on his own behalf and called five other witnesses. He entered six exhibits into evidence.

On April 2, 2024, the hearing judge issued findings of fact and conclusions of law (the "findings"). The court found by clear and convincing evidence that Mr. Whitted violated WRPC 3.1 and 8.4(a), (c), and (d). The hearing judge also found three mitigating factors and six aggravating factors.

As permitted under Maryland Rule 19-728(b), Mr. Whitted excepted to multiple findings. The Commission excepted to three findings.

Oral argument was held before this Court on June 3, 2024. As explained below, we overrule Mr. Whitted’s exceptions, sustain two of the Commission’s exceptions, overrule one of the Commission’s exceptions, and, except as noted in our analysis of MARPC 8.4(c), adopt the hearing judge’s findings in all other respects. We determine that indefinite suspension is the appropriate sanction.

I FACTS

A. Background Facts

Mr. Whitted married Lori Jordan in 1985. They had three children, all born between 1993 and 1998.

Mr. Whitted was admitted to the Bar of the State of Maryland on June 21, 1995. Before that, he practiced law in Georgia. He is also admitted to practice law in the District of Columbia and Massachusetts. Mr. Whitted currently resides in Montgomery County, Maryland.

At some point, the family moved to Fulton County, Georgia. In 2006, Mr. Whitted filed for a divorce in the Superior Court of Fulton County. On November 13, 2007, the court issued a Final Judgment and Decree of Divorce. The court awarded the parties joint legal custody of their children, physical custody to Ms. Jordan, and reasonable visitation to Mr. Whitted. The court ordered Mr. Whitted to pay child support in the amount of $1,735.93 per month and awarded him $55,000 from Ms. Jordan’s 401 (k) retirement plan. Mr. Whitted was directed to provide Ms. Jordan with an account into which the retirement funds would be transferred. At that time, Mr. Whitted was employed as an Assistant County Attorney for DeKalb County, Georgia.

Mr. Whitted chronically failed to pay child support, and in 2010, Ms. Jordan asked the Superior Court of Fulton County to hold him in contempt, alleging arrearages of $15,075.26. The court determined that Mr. Whitted owed $12,307.93 and, in addition to his regular monthly payment, ordered him to pay $1,000 per month until the arrearages were fully paid.

On July 16, 2010, Ms. Jordan filed a motion in the Superior Court of Fulton County, asking the court’s permission to relocate the minor children to North Carolina. Soon after, Mr. Whitted filed a separate lawsuit in that same court, naming as defendants Ms. Jordan; her attorney, George Lawson; Mr. Lawson’s law firm; and "John Doe." He alleged that: (1) Mr. Lawson harassed, intimidated, and maliciously injured Mr. Whitted by filing a petition alleging that Mr. Whitted committed emotional cruelty against Ms. Jordan; (2) Ms. Jordan altered court orders; (3) certain court orders were illegal; (4) Ms. Jordan converted "to her own use" the $55,000 from her 401(k) plan that had been awarded to Mr. Whitted; and (5) John Doe had a "tryst" with Ms. Jordan in August 2008 that resulted in a child born in May 2009. Mr. Whitted sought $500,000 in damages from each defendant, plus punitive damages.²

On August 30, 2010, in response to Ms. Jordan’s motion to bring the children to North Carolina, Mr. Whitted moved for the court to find Ms. Jordan in contempt, order her to immediately return the children to Georgia, deny her motion, and award him physical custody of the children.

In September, Mr. Whitted lost his job, and in October 2010, he ceased paying child support. He did not, however, move for modification of his child support obligation.

[1] On January 6, 2011, Superior Court Judge Bensonetta Tipton Lane granted Ms. Jordan sole physical and legal custody of the children, permitting her to move the children to North Carolina. Mr. Whitted appealed Judge Lane’s custody decision, to no avail. Judge Lane also held Ms. Jordan in contempt for failing to transfer the $55,000 from her 401(k) plan. Judge Lane stated, however, that the burden was on Mr. Whitted to provide Ms. Jordan with a valid and executed qualified domestic relations order ("QDRO")³ and directed him to do so. Mr. Whitted subsequently executed a defective QDRO but failed to take further action to transfer the money from the 401(k) plan.

On May 5, 2011, Mr. Whitted moved for the recusal of Judge Lane. He also petitioned for mandamus against Judge Lane, requesting that his pending motions be decided within five days by a different judge. The court denied the mandamus petition, holding that it lacked the authority or subject matter jurisdiction to impeach a judicial officer. On September 15, Judge Lane recused herself from Mr. Whitted’s cases.

On September 20, 2011, Mr. Whitted filed a complaint in the United States District Court for the Northern District of Georgia against Judge Lane and Ms. Jordan’s husband, alleging, among other things, that Judge Lane violated his constitutional rights when:

(1) in 2009, she advised him that he had waited too long to challenge the award of marital assets in the divorce;

(2) in 2010, she discarded evidence related to his divorce action;

(3) in 2010, she attempted to cancel a hearing to determine his property rights and sought to have the matter dismissed;

(4) in 2010, she issued an unconstitutional ruling regarding a dispute between him and Ms. Jordan over the division of marital assets and funds from a retirement account; and

(5) she denied him access to the courts.

Because Mr. Whitted’s children lived with Ms. Jordan’s husband, Mr. Whitted alleged false imprisonment, abduction, loss of consortium, and intentional infliction of emotional distress. He sought: (1) compensatory damages of $1,000,000 from Judge Lane; (2) compensatory damages of $750,000 from Mr. Jordan; (3) an additional $3,000 per day against Mr. Jordan until he returned the children to Mr. Whitted; (4) punitive damages; and (5) attorneys’ fees.

The court dismissed the complaint against Judge Lane due to insufficient service of process and declined to exercise supplemental jurisdiction over the state law claims against Mr. Jordan.

In late 2011, Mr. Whitted began working for the Prince George’s County Attorney as an Assistant County Attorney. Meanwhile, in the summer of 2012, the Jordans moved with the children to King County, Washington.

Between 2010 and 2016, Mr. Whitted made no child support payments. On June 14, 2016, Ms. Jordan, through her attorney, Stacey Smythe, filed to register the Georgia divorce decree in the Superior Court of Washington for King County and to collect unpaid child support.

Two weeks later, Mr. Whitted moved for a dismissal and for contempt, claiming that:

[b]ecause of [Ms. Jordan’s] "unjustifiable misconduct," her unclean hands, her failure to inform this Court of the civil actions previously filed in Georgia and North Carolina, and her contumacious conduct in failing to inform [Mr. Whitted] of the addresses of the Parties’ children since 2011, as well as her acts of parental alienation, this Court should decline to exercise its subject matter jurisdiction in this matter.

Mr. Whitted also alleged that Ms. Jordan owed him $55,000, plus accrued interest, for a total of $140,000.

On August 11, 2016, Mr. Whitted filed a writ of garnishment in the Superior Court of Washington for King County against Ms. Jordan’s wages.

On August 22, 2016, a Commissioner of the court denied Ms. Jordan’s motion to register the Georgia divorce decree, finding that it did not comply with the Uniform Child Custody Jurisdiction and Enforcement Act. Ms. Jordan moved to revise the Commissioner’s order. The Honorable Elizabeth Berns reversed the Commissioner’s finding and, by order dated December 6, 2016, held that Ms. Jordan substantially complied with that statute.

On January 12, 2017, Judge Berns held a hearing to determine whether Mr. Whitted should be held in contempt for failing to pay child support. Judge Berns found Mr. Whitted in contempt, awarded Ms. Jordan attorneys’ fees and...